State v. Reed

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 10-14-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. GEORGE M. REED, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 09-0532 1 CA-CR 09-0637 (Consolidated) DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in La Paz County Cause No. S1500CR20060332 The Honorable Michael J. Burke, Judge AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESENTENCING Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Michael T. O Toole, Assistant Attorney General Attorneys for Appellee David Goldberg Attorney for Appellant Phoenix Fort Collins, CO J O H N S E N, Judge ¶1 sentences George conspiracy on to M. one Reed count commit appeals of armed armed from his robbery robbery. convictions and For two the and counts reasons of that follow, we vacate one of the conspiracy convictions, affirm the remaining convictions and remand for resentencing. FACTS AND PROCEDURAL BACKGROUND ¶2 In the summer of 2005, a truck stop in Ehrenburg was robbed twice by a masked and armed intruder. 1 occurred around 5 a.m. on July 14 The first incident after the bookkeeper had collected money from the safe. truck stop She took the money to her office, then, while she was closing the office door, a robber confronted her from behind and demanded the money while pointing a gun at her. The second incident occurred in the early morning of September 15 as the backup bookkeeper was carrying money from the safe to the office. The robber came up behind her in the hallway, and they kind of [fought] . . . for the bag that had the money in it. As the robber left, the backup bookkeeper saw he was armed with a gun. 1 Immediately [W]e view the evidence in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the defendant. State v. Latham, 223 Ariz. 70, 72, ¶ 9, 219 P.3d 280, 282 (App. 2009) (quoting State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984)). 2 after the second robbery, Diane Dutton, another truck stop employee, was seen driving a pickup truck from a nearby parking lot. The robbery suspect was the passenger in the truck. In total, more than $122,000 was taken in the two robberies. ¶3 The State charged Reed with two counts of conspiracy to commit armed robbery and two counts of armed robbery, one count of each charge for each of the two incidents. are Class 2 felonies. Reed eventually entered All counts into a plea agreement in which he agreed to plea guilty to one charge of armed robbery and to cooperate with further investigations into the robberies. Specifically, he agreed to provide investigators with all information he has concerning the armed robberies, and he agreed to answer truly, fully and completely, without reservation, each and every question put to him . . . . Also pursuant to the agreement, Reed agreed to submit to a polygraph examination to determine the likely veracity of the information provided. In exchange, the State agreed to dismiss the remaining charges and agreed that Reed would be given probation. The superior court accepted the plea agreement and set the matter for sentencing. ¶4 Before examinations. sentencing, Reed underwent three polygraph The results of the first exam were inconclusive as to his answers to questions regarding his presence at the truck stop during the first robbery. 3 After a second polygraph showed deception, the State moved to withdraw from the plea agreement. stolen, After records pertaining to the second exam were the parties agreed to a third examination conducted by a polygrapher selected by Reed. conclusively indicated deception, and the to be The third exam court granted the State s motion to withdraw from the plea agreement. ¶5 The matter proceeded to trial, and the jury acquitted Reed of the first armed robbery but found him guilty of the remaining counts. The superior court sentenced him to aggravated terms of 21 years incarceration for the conspiracy convictions to be served concurrent to each other but consecutive to a presumptive term of 10.5 years for the armed robbery conviction. Reed timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and -4033(A)(1) (2010). 2 DISCUSSION A. The State s Withdrawal from the Plea Agreement. ¶6 Reed first contends the superior court erred in allowing the State to withdraw from the plea agreement. He argues as the court improperly construed 2 the plea agreement We cite a statute s current version absent material changes since the date of the offense. 4 requiring him Instead, he to successfully argues the pass plea a polygraph agreement merely examination. required he submit to a polygraph. 3 ¶7 Generally, agreements. 756, 758 we apply contract analysis to plea Mejia v. Irwin, 195 Ariz. 270, 272, ¶ 12, 987 P.2d (App. 1999). interpretation de novo. We review issues of contract Ahwatukee Custom Estates Mgmt. Ass n v. Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279 (App. 2000). In interpreting a contract, enforce the parties intent. our purpose is to determine and US West Commc ns, Inc. v. Ariz. Corp. Comm n, 185 Ariz. 277, 280, 915 P.2d 1232, 1235 (App. 1996). In determining the parties intent, we look to the plain meaning of the words as viewed in the context of the contract as a whole. United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 259, 681 P.2d 390, 411 (App. 1983); see also State ex rel. Goddard v. R.J. Reynolds Tobacco Co., 206 Ariz. 117, 120, ¶ 13, 75 P.3d 1075, 1078 (App. 2003) (in interpreting a contract, we consider the context of the words and the purpose of the agreement). 3 Reed asserts he is entitled to summary relief on this issue because no transcripts are available of the hearing at which the polygrapher who administered the first two examinations testified. Our record, however, contains sufficient other transcripts, including the transcript from the post-trial hearing, and a copy of the plea agreement. 5 ¶8 As noted, the plea agreement required Reed to furnish investigators with all information he had concerning the robberies, and that he answer under oath, truly, fully and completely, without reservation all of the questions put to him about the incidents. It further provided that after furnishing the information, he would submit to a polygraph examination to determine the likely veracity of the information provided. ¶9 Considering conclude that Reed these and provisions the State together, intended that we cannot Reed would satisfy his obligation under the plea agreement by submitting to a polygraph but failing the examination. Although the plea agreement did not specify that Reed must successfully complete the polygraph examination, the purpose of the polygraph was to determine the likely veracity of the information he provided to investigators answers in concerning the polygraph the robberies. examination Reed s permitted the deceptive superior court to find that he had breached his obligation under the plea agreement to answer questions about the robberies truly, fully and completely. ¶10 plea Reed argues the State failed to show he breached the agreement robberies by because providing it an untruthful no evidence offered account of what of the he told investigators about the robberies prior to the polygraph. Our review of the record reveals that the parties and the court 6 apparently all understood that when investigators interviewed Reed prior to his polygraph, he gave the same answers he gave during the second and third which indicated deception). the State s prosecutor motion to explained polygraph (both of For example, at oral argument on withdraw that examinations the plea the from plea agreement agreement, the calls the for defendant to testify truthfully and asserted that because Reed had failed a polygraph, there s just no way I can put him on as a witness, so agreement. he can t live up to his part of the plea Reed offered no argument or facts to rebut the prosecutor s implication that the polygraph results called into question the account of the robberies even without he had provided under oath. 4 ¶11 account In any that event, Reed had given direct investigators, evidence we of the conclude the polygraph results constituted sufficient evidence on which the superior court could find that Reed had breached his obligation to testify truthfully and completely about the robberies. belies common sense to conclude 4 that, when asked It similar For example, the court noted that the third polygraph examination showed that Reed was being deceptive when he denied being present at the truck stop the day of the initial robbery and when he denied participating in that robbery. The court then concluded Reed violated the plea agreement because the polygraph examination showed he wasn t being truthful and that he was being deceptive. 7 questions about the robberies in his interview and in the polygraphs, Reed chose to give truthful answers in the interview but different, deceptive answers during the polygraph. ¶12 Finally, jeopardy rights by Reed argues allowing the trial court to violated proceed on his the double charged offenses, and he claims the State acted in bad faith by imposing a requirement that he pass a polygraph exam. We disagree. First, no double jeopardy violation occurred because the court correctly determined Reed breached the plea agreement by not cooperating robberies. truthfully with the investigation into the See Coy v. Fields, 200 Ariz. 442, 444, ¶ 5, 27 P.3d 799, 801 (App. 2001) (defendant who breaches obligations under plea agreement waives double jeopardy protections). Second, the record does not indicate the State acted in bad faith in seeking to withdraw from the plea agreement. ¶13 For the foregoing reasons, the superior court did not err in granting the State s motion to withdraw from the plea agreement. See id. (defendant s breach of obligations under plea agreement permits State to withdraw from agreement). B. Sufficiency of the Evidence. 1. ¶14 Standard of review. Reed argues the superior court abused its discretion in denying his motion for acquittal pursuant to Arizona Rule of 8 Criminal Procedure 20 because no substantial evidence supports his convictions. ¶15 This court reviews a denial of a Rule 20 motion for an abuse of discretion and will reverse a conviction only if there is a complete absence of substantial evidence to support the charges. State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001). Substantial evidence is evidence that a reasonable jury can accept as sufficient to support a conclusion of guilt beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, 493, ¶ 24, 975 P.2d 75, 83 (1999). In determining whether the court abused its discretion in denying a Rule 20 motion, we view the evidence in the light most favorable to upholding the verdict. State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983). If reasonable minds could differ on the inferences to be drawn from the evidence, the case must be submitted to the jury. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993). 2. ¶16 Conspiracy. A conspiracy to commit armed robbery requires that two or more persons agree to commit armed robbery and an overt act is taken in furtherance of the agreement. (2010). for A.R.S. § 13-1003 Reed argues the court should have granted his motion judgment of acquittal on the 9 conspiracy charges because there was no evidence that he and Dutton agreed that a weapon would be used in the September robbery. 5 ¶17 Dutton graveyard discuss shift the testified at the overall that truck in July stop layout of and the 2005 she worked the that she often would store and how things operated with Reed, who was a customer Dutton knew socially. The two also talked about how much money was made a day, . . . and how they proceeded, you know, accounting and things like that. Indeed, Dutton testified would rob the truck stop. that she knew Reed someday He had asked Dutton how a robbery could be done, and the amount of money that can be taken during the course of that robbery things along that line. . . . surveillance information, Many times prior to the July robbery, Reed had told Dutton that he was going to rob the truck stop on a particular day, but then no robbery would occur. When the truck stop was robbed on July 14, Dutton automatically assumed that it was him. Prior to the July robbery, in return for the information she provided, Reed had agreed to give Dutton pretty close to half of the loot from the robbery. Dutton said the day after the July robbery, she was with Reed when he bought two 5 Due to double jeopardy concerns, we vacate the first of Reed s conspiracy convictions. See infra ¶ 26. 10 trucks for $22,000 in cash that he said he got . . . from the robbery at [the truck stop] the night before. ¶18 Dutton robbery, she talked with Reed about a second robbery of the truck stop. At Reed s request, testified she that confirmed after that the the July setup was still the same at the truck stop and she arranged for an entrance. Reed told her that he wanted to do it a second time . . . . And then the night of the robbery he said that we are going to do it tonight, and I just said, okay. At Reed s direction, Dutton dropped him off in front of the truck stop the morning of the robbery and then drove the getaway vehicle after the robbery was complete. Dutton testified that she saw Reed s firearm that morning. 6 ¶19 Any action sufficient to corroborate the existence of an agreement to commit the unlawful act and to show that it is being put into effect supports a conspiracy conviction. v. Arredondo, (1987). 155 Ariz. 314, 316-17, 746 P.2d 484, State 486-87 Criminal conspiracy need not be, and usually cannot be, proved by direct evidence. The common scheme or plan may be inferred from circumstantial evidence. Id. at 317, 746 P.2d at 487; see State v. Avila, 147 Ariz. 330, 336, 710 P.2d 440, 446 6 This testimony by Dutton evidences more than a mere association between Dutton and Reed, as Reed asserts. See State v. Sullivan, 68 Ariz. 81, 87, 200 P.2d 346, 350 (1948). 11 (1985) ( The existence of an unlawful agreement can be inferred from the overt conduct of the parties. ). ¶20 Viewed in a light most favorable to sustaining the conspiracy convictions, Dutton s testimony and the testimony of the other truck stop employees, supra ¶ 2, supports an inference that Reed agreed with one or more persons that he or a fellow conspirator would commit the armed robberies at the truck stop. Reed argues there was insufficient evidence of an agreement between him and Dutton to commit an armed robbery of the truck stop in September. testimony that she We knew conclude, Reed had however, committed that the Dutton s first armed robbery and that he told her he wanted to do it a second time gives rise to a reasonable inference that the conspiracy(ies) involved armed robbery. See Fulminante, 193 Ariz. at 494, ¶ 27, 975 draw P.2d at 1194 (we all reasonable inferences that support the verdict ); see also Arredondo, 155 Ariz. at 316-17, 746 P.2d at 486-87; Avila, 147 Ariz. at 336, 710 P.2d at 446 ( [P]roof of a criminal combination to do an unlawful act can rarely be made except by light reflected from its consequences or results. ) (quoting State v. Estrada, 27 Ariz. App. 38, 40, 550 P.2d 1080, 1082 (1976)). ¶21 Because substantial evidence supports Reed s conspiracy convictions, the superior court did not abuse its discretion in denying the Rule 12 20 motion directed to those charges. See Arredondo, 155 Ariz. at 316, 746 P.2d at 486 (to reverse on the basis of insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. ). 3. Armed robbery. ¶22 Reed argues his armed robbery conviction should be vacated because the evidence was insufficient to show that he used or threatened to use a gun during the robbery or that he used or threatened to use force to get the money. ¶23 Use or threatened use of the gun is not an element of armed robbery; armed. See it is A.R.S. § enough that one 13-1904(A)(1) commits (2010). robbery The while truck stop employee testified she observed the suspect with a gun when he left the scene of the September robbery with the money. She also testified that she fought with the suspect for control of the bag containing the money. with Dutton s robbery, testimony supra Reed s armed Ariz. 1, ¶¶ 17-18, robbery 21, 926 That testimony, when considered that is Reed substantial conviction. P.2d committed 468, See 488 the evidence State v. (1996) September to support Dickens, 187 (credibility determinations are for the jury); State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (jury determines weight of evidence); see also A.R.S. §§ 13-1901(1) (2010), (2010), -1904(A)(1) (elements of armed robbery). 13 -1902(A) C. Conspiracy Convictions: Double Jeopardy. ¶24 The verdict forms for both of the conspiracy charges directed that conspiracy, if it the jury should found determine Reed guilty whether the of the alleged object conspiracy was one or both of the armed robberies. of the The jury found Reed guilty of both charged conspiracies and also found the objects of the conspiracies were both of the robberies. The State and concedes the dual convictions constitute error requests we vacate Reed s conviction on the first of the two charged conspiracies. ¶25 offense. Double jeopardy bars multiple punishments for the same Brown v. Ohio, 432 U.S. 161, 165 (1977). Even if concurrent sentences are imposed, double jeopardy concerns are implicated because conviction by the itself existence constitutes of an additional punishment. See felony State v. Brown, 217 Ariz. 617, 621, ¶ 13, 177 P.3d 878, 882 (App. 2008) (citing Ball v. United States, 470 U.S. 856, 864-65 (1985)). ¶26 A person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement . . . . (2010). A.R.S. § 13-1003(C) The jury in this case effectively found Reed guilty twice for participating in one conspiracy to commit two armed robberies. Because the convictions impermissibly amount to double punishment, we set aside Reed s conviction on the first 14 conspiracy charge. P.2d 997, 999 See State v. Medina, 172 Ariz. 287, 289, 836 (App. 1992) (where only a single conspiracy proved, one of two conspiracy convictions vacated). 7 D. Sentencing. ¶27 As noted, the court sentenced Reed to an aggravated term of 21 years imprisonment on the conspiracy charge. 8 The sole aggravating factor the court identified at sentencing was the jury s finding that Reed conspired to commit two robberies. As the State concedes, the jury s finding that Reed conspired to commit two robberies is not a statutorily enumerated aggravating factor that the court properly could consider in determining Reed s sentence. See A.R.S. § 13-701(D) (1-23) (2010). Instead, the court treated the finding as a so-called catch- 7 The second conspiracy count charged Reed with conspiring to commit the September armed robbery. We reject Reed s additional contention that the form of verdict presented to the jury for that charge impermissibly amended the indictment to add an additional object of the conspiracy. Reed argues that due to the form of verdict, there is no way to tell whether the jury unanimously found that there was two or one actual conspiracy [sic]. We do not see how Reed could have been prejudiced because by completing the verdict form in the manner it did, the jury found he conspired to commit both of the armed robberies, not one or the other. 8 Because we vacate one of the conspiracy convictions, we refer in this section to a single aggravated sentence of 21 years for conspiracy. 15 all aggravator currently found under A.R.S. § 13-701(D)(24). 9 However, a defendant s due-process rights are violated when the court uses the catch-all as the sole factor to increase a sentence. State v. Schmidt, 220 Ariz. 563, 566, ¶ 10, 208 P.3d 214, 217 (2009). ¶28 Accordingly, because the court erred in sentencing Reed on the conspiracy conviction, we remand for resentencing on that conviction. See id. at 566, ¶ 12, 208 P.3d at 217. CONCLUSION ¶29 We affirm conviction on conviction on the the Reed s armed robbery conviction second conspiracy charge. first conspiracy charge We and and his vacate the remand for resentencing on the remaining conspiracy conviction. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 9 At the time Reed committed the July 2005 offense, the catch-all aggravator was located at A.R.S. § 13-702(C)(21), which was subsequently renumbered effective August 12, 2005 to A.R.S. § 13-702(C)(22). See 2004 Ariz. Sess. Laws, ch. 174, § 1 (2nd Reg. Sess.); 2005 Ariz. Sess. Laws, ch. 166, § 1 (1st Reg. Sess.). 16

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